Anderson v. State

637 S.E.2d 790, 282 Ga. App. 58, 2006 Fulton County D. Rep. 3431, 2006 Ga. App. LEXIS 1308
Court of Appeals of Georgia·Decided October 23, 2006·No. A06A2240·Published·Cited by 8 cases

Opinion

637 S.E.2d 790 (2006)

ANDERSON
v.
The STATE.

No. A06A2240.

Court of Appeals of Georgia.

October 23, 2006.

*791 W. Keith Barber, Statesboro, for appellant.

Richard Mallard, District Attorney, for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial, John Darrell Anderson was convicted of one count each of aggravated child molestation,[1] attempted aggravated sodomy,[2] statutory rape,[3] kidnapping,[4] and enticing a child for indecent purposes.[5] He appeals his convictions and the denial of his motion for new trial, (1) challenging *792 the sufficiency of the evidence and contending that the trial court erred in (2) improperly charging the jury as to aggravated child molestation and (3) denying his claims of ineffective assistance of counsel. For the reasons set forth below, we affirm.

1. We first address Anderson's contention that the evidence was insufficient to support his conviction. "On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and [Anderson] no longer enjoys a presumption of innocence." Berry v. State.[6] When evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia.[7]

So viewed, the record shows that in early November 1997, then seven-year-old C.J. informed her mother that Anderson, a friend of her mother who had been living with them for the past several months, had inappropriately touched her. However, when her mother became upset and began questioning her further, C.J. recanted the accusation. Confused and still upset, C.J.'s mother had her sister-in-law (C.J.'s aunt), who lived in the same mobile home park and often took care of C.J., take C.J. to stay with her that night. The next morning, the aunt asked C.J. to tell her the truth about whether Anderson had touched her. C.J. responded that he had, and more specifically that Anderson had put his privates inside her privates and had also tried to put his privates in her behind. The aunt then told C.J.'s mother what had happened and suggested that C.J. be taken to the hospital for an examination. The following day, C.J.'s mother took her to the hospital where she was examined by a nurse practitioner who found evidence consistent with sexual molestation.

Anderson was arrested and indicted on one count each of aggravated child molestation, attempted aggravated sodomy, statutory rape, kidnapping, and enticing a child for indecent purposes. At trial, C.J. testified that one night while she was trying to go to sleep, Anderson woke her up, carried her into his bedroom, and would not let her leave. He removed her clothes, put his privates inside her privates, and also tried to put his privates in her behind. When he was finished, he let her leave but told her not to tell anyone about what had happened. C.J.'s mother and her aunt also testified as to what C.J. told them had happened. The investigating police officer testified as to what C.J. told him about the incident and also played a videotaped interview with C.J., taken a few days after she had revealed to her mother and aunt that she had been molested. In addition, the nurse practitioner who examined C.J. testified that the exam revealed that the girl's hymenal ring was not intact and that she had suffered a tear in the perineum, findings which were consistent with C.J.'s account of the sexual abuse. At the trial's conclusion, Anderson was found guilty on all five counts of the indictment. He filed a motion for new trial, which was amended twice and denied after a hearing. This appeal followed.

Anderson contends that the evidence was insufficient to support his conviction. We disagree. "A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy."[8] OCGA § 16-6-4(c). The offense of attempted aggravated sodomy is when a person with the intent to commit sodomy performs any act constituting a substantial step toward the commission of sodomy with force and against the will of the other person or with a person less than ten years of age.[9] "A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person *793 under the age of 16 years and not his or her spouse."[10] In this case, C.J. testified that Anderson put his privates inside her privates and attempted to put his privates in her behind. Additionally, the nurse practitioner testified that the physical exam of C.J. indicated injuries consistent with C.J.'s testimony. Thus, there was sufficient evidence to support Anderson's convictions on Count 1 (aggravated child molestation), Count 2 (attempted aggravated sodomy), and Count 3 (statutory rape). See Iles v. State;[11]Mann v. State;[12]Dorsey v. State.[13]

"A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will."[14] "A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts."[15] Here, C.J. testified that Anderson carried her into his bedroom and would not let her leave until after he had sexually abused her. Thus, there was sufficient evidence to support Anderson's convictions on Count 4 (enticing a child for indecent purposes) and Count 5 (kidnapping). See Pickett v. State.[16]

2. Anderson contends that the trial court erred in charging the entirety of OCGA § 16-6-4(c), given that the indictment charged him with aggravated child molestation only by causing a physical injury to the child. Specifically, he argues that because the State introduced evidence of attempted aggravated sodomy, in addition to evidence that he caused a physical injury to C.J., charging on the entirety of OCGA § 16-6-4(c) raised the possibility that the jury believed he committed aggravated child molestation in a manner not charged in the indictment. See Dukes v. State[17] (jury instructions may not mislead jury into convicting defendant of crime in way other than that charged in the indictment).

We first note that Anderson failed to object to any of the trial court's charges, including the charge on the definition of aggravated child molestation. "Generally, failure to object to a jury charge in a criminal case constitutes a waiver, except, under OCGA § 5-5-24(c), where there has been a substantial error in the charge which was harmful as a matter of law." Jones v. State.[18] Although charging the jury on the entirety of OCGA §

Anderson v. State, 637 S.E.2d 790, 282 Ga. App. 58, 2006 Fulton County D. Rep. 3431, 2006 Ga. App. LEXIS 1308 (Ga. Ct. App. 2006).

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